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2004 DIGILAW 1030 (PAT)

Sidheshwar Yadav v. State Of Bihar

2004-09-24

CHANDRAMAULI KR.PRASAD

body2004
Judgment 1. Petitioner apprehends his arrest in Tekari PS Case No. 59 of 2001 registered under Sections 302, 120-B, 147,148, 149, 447, 307 and 366 of the Indian Penal Code and 27 of the Arms Act giving rise to Sessions Trial No. 61 of 2003 and prays for grant of anticipatory bail. 2. On the basis of the report given to the police, Tekari PS Case No. 59 of 2001 was registered under Sections 147, 148,149, 447, 307, 364 and 302/120-B of the Indian Penal Code and 27 of the Arms Act. Petitioner as also other persons figured as accused in the said case. 3. Police after investigation submitted charge-sheet against some of the accused persons but petitioner was not sent up for trial. The report submitted by the police was considered by the Chief Judicial Magistrate and by order dated 3.5.2002 the proceeding against the present petitioner was dropped. Ultimately case was committed to the Court of Session. After the evidence was led, an application was filed for summoning the petitioner to face trial in exercise of the power under Section 319 of the Code of Criminal Procedure (for short the Code) which was acceded to by the learned Additional Sessions Judge in seisin of the trial. 4. Petitioner thereafter filed an application for grant of anticipatory bail before the Session Judge which was registered as Anticipatory Bail Petition No. 1125 of 2004. The Learned Sessions Judge by the impugned order rejected the prayer of the petitioner for grant of anticipatory bail, inter alia, observing that when trial is being held in a parallel Court of Session having similar judicial power and function, no such anticipatory bail is entertainable. 5. Mr. Rana Pratap Singh, Senior Advocate appearing on behalf of the petitioner submits that the view taken by the learned Session Judge while rejecting the prayer of the petitioner for grant of anticipatory bail that the same is not entertainable is erroneous in law. Mr. M.N.A. Khan, Additional Public Prosecutor appearing on behalf of the State and Mr. 5. Mr. Rana Pratap Singh, Senior Advocate appearing on behalf of the petitioner submits that the view taken by the learned Session Judge while rejecting the prayer of the petitioner for grant of anticipatory bail that the same is not entertainable is erroneous in law. Mr. M.N.A. Khan, Additional Public Prosecutor appearing on behalf of the State and Mr. Satyanand Sharma, appearing on behalf of the informant, however, contend that the view taken by the learned Sessions Judge is in conformity with the scheme of the Code, which does not call for interference by this Court.The submission advanced necessitated examination of the scheme of the Code and in this connection one has to consider Section 438 of the Code, which confers power to issue direction for grant of bail to persons apprehending arrest, relevant portion whereof reads as follows : "438. Direction for grant of a bail to person apprehending arrest.(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (Underlining mine) xx xx xx xx 6. Form a plain reading of the aforesaid provision it is evident that it is the Court of Session, in the context, which has been conferred with the power to give direction for grant of bail to person apprehending arrest. Now the question is whether such a power can be exercised by the Additional Sessions Judge or in other words Additional Sessions Judges come within the expression "Court of Session" for the purpose of Section 438 of the Code. For this one has to refer to Section 9 of the Code which inter alia provides for constitution of Court of Sessions, it reads as follows : "9. Court of Session(1) The State Government shall establish a Court of Session for every sessions division. (2) Every Court of Sessions shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. xx xx xx xx" 7. (2) Every Court of Sessions shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. xx xx xx xx" 7. Section 9 of the Code casts an obligation on the State Government to establish a Court of Session for every Session Division which is to be presided over by a Judge to be appointed by the High Court known as Sessions Judge. Section 9(3) of the Code confers power of the High Court to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. In my opinion conferring jurisdiction on Additional Sessions Judge and Assistant Sessions Judge to exercise jurisdiction in a Court of Session shall riot elevate them to the position of Court of Session on the person who presides over it i.e. Sessions Judge. In other words Court of Session refers only to the Court of Session presided over by the Sessions Judge and the Additional Sessions Judge and Assistant Sessions Judge shall not come within the expression Court of Session. The view which I have taken finds support from a Full Bench judgment of this Court in the case of Kamleshwar Sing v. Dharmadeo Sing, AIR 1957 Patna 375, wherein it has been held as follows : "6. In my opinion the contention of Mr. Rarneshwar Prasad Sinha that the words "Court of Session" occurring in Section 408 refers only to the Court of Session presided over by the Sessions Judge and that an Additional Sessions Judge or an Assistant Sessions Judge, as a Judge of the Court of Sessions, has no powers to receive such appeals is well-founded. The contrary view urged by the learned Additional Government Pleader seems to me to be unacceptable." 8. Having said so; the next question which falls for determination is as to whether power under Section 438 of the Code can be exercised by the Additional Sessions Judge. In this connection it is apt to refer to Section 194 of the Code, which reads as follows : "194. Additional and Assistant Judge to try cases made over to them. Having said so; the next question which falls for determination is as to whether power under Section 438 of the Code can be exercised by the Additional Sessions Judge. In this connection it is apt to refer to Section 194 of the Code, which reads as follows : "194. Additional and Assistant Judge to try cases made over to them. An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by special order makeover to him for trial or as the High Court may, by special order, direct him to try." 9. From a plain reading of the aforesaid provision, it is clear that the Sessions Judge by general or special order and the High Court by special order may make over to the Additional Sessions Judge to try a case. Hence Additional Sessions Judge, in my opinion, can exercise the power under Section 438 of the Code only in respect of the cases assigned to it by general or special order by the Sessions Judge or by special order of this Court but he cannot entertain an application for anticipatory bail without the case being made over to it. Section 438 of the Code, having not conferred power on the Additional Sessions Judge, to hear anticipatory bail application without being made over to it, the view taken by the learned Sessions Judge that application for grant of anticipatory bail is not entertainable by him does not seem to be correct. 10. A caveat, however, is necessary to be added at this stage. There may be a case in which the Sessions Judge may like to assign the application for anticipatory bail to the Court concerned, who had passed the order in exercise of the power under Section 319 of the Code but that shall be in the realm of discretion which does not affect his jurisdiction. In a given case he may like to take recourse to that but that itself shall not mean that the Sessions Judge cannot entertain an application of anticipatory bail when another Judge had exercised the power under Section 319 of the Code. 11. In a given case he may like to take recourse to that but that itself shall not mean that the Sessions Judge cannot entertain an application of anticipatory bail when another Judge had exercised the power under Section 319 of the Code. 11. From the conspectus of the discussions aforesaid, I am of the opinion that for the purpose of Section 438 of the Code the expression "Court of Session" shall mean the Court of Sessions presided over by the Sessions Judge and Additional Sessions Judge or an Assistant Sessions Judge shall have no power to entertain anticipatory bail application directly but at the same time it cannot be said that they cannot exercise the power of the Sessions Judge in respect of the anticipatory bail application assigned to them either by the Sessions Judge by general or special order or by the High Court by special order. 12. Having held so, the option before me is either to set aside the order of the Sessions Judge rejecting the prayer for grant of anticipatory bail and remit the matter back to him to consider the prayer of the petitioner on merit or after setting aside his order direct him to assign the case to the Additional Sessions Judge who had passed the order but in the facts or the present case I am not inclined to charter any of the aforesaid courses and would like to dispose of the application here itself. 13. Petitioner was named in the First Information Report but the police after investigation did not submit charge-sheet against him and he was not forwarded for trial. Petitioner has been summoned to face trial along with other accused person in exercise of the power under Section 319 of the Code. in view of aforesaid, 1 am inclined to accede to the prayer of the petitioner. 14. Accordingly this application is allowed and it is directed that in the event of arrest/surrender within four weeks in Tekari PS Case No. 59 of 2001 (ST No. 61 of 2003) petitioner namely Sidheshwar Yadav shall be enlarged on bail on furnishing personal bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of the Additional Sessions Judge-VI, Gaya, subject to the conditions as laid down under Section 438 (2) of the Code of Criminal Procedure.